Reseller Customer Terms of Use

Last updated: June 8, 2021

These Reseller Customer Terms of Use (these “TOUs”) govern Customer’s use of The Trade Desk’s (“TD”) Platform and Services, and are deemed incorporated by reference into the agreement between Customer and Reseller pursuant to which Reseller is providing Customer with access to and use of TD’s Platform and Services (the “Customer Agreement”).

1. CERTAIN DEFINITIONS.

1.1 “Audience Tools” means the functionality provided in the Platform that enables advertising campaigns to be targeted to particular types of users (e.g., avid golfers). Audience Tools may utilize audience data provided by Customer (i.e., first party data), third parties (e.g., BlueKai) or TD.

1.2 “Directly Identifying Information” means data that directly identifies or reasonably can be used to directly identify an individual, including name, raw (unhashed) email address, postal address, phone number, or government identifier. For the avoidance of doubt, Directly Identifying Information does not include (i) cookie identifiers; (ii) advertising identifiers assigned by mobile devices; (iii) IP addresses; (iv) other forms of device identifiers generally accepted for use in relation to advertising; and (v) demographic, interest, or browsing behavior data associated with such identifiers.

1.3 “Inventory Partners” means the third parties who make inventory available for purchase through the Platform. 

1.4 “Platform” means the TD hosted software platform including Audience Tools and other functionality. 

1.5 “Reseller” means the entity that has contracted directly with TD to resell the right to access and use the Platform and Services to customers and the entity that has contracted directly with Customer for such right to access and use the Platform and Services.

1.6 “Services” means the services and functionality provided by the Platform, any campaign management services, tags and pixels, APIs, and any other services provided by TD from time to time.

1.7 “Sites” includes websites, apps, video or audio programs, or other content and media from which ad inventory is made available by Inventory Partners or from which data is collected or used in association with the Services.

2. SERVICES.

2.1 Self-Serve Usage. Subject to these TOUs and as long as (a) Customer is not in breach of its obligations to TD or Reseller, and (b) Customer is at all times a reseller client of an active and authorized Reseller, TD grants Customer a non-exclusive, non-transferable right to access and use the Platform on a self-serve basis solely to purchase advertising for its or any third party on whose behalf Customer is acting (each a “Client”) advertising campaigns. Customer will obtain and maintain throughout the term of its use of the Platform or Services (and hereby grants to TD) all rights and permissions reasonably necessary to buy inventory on Customer’s behalf (and on behalf of any Client), perform tracking and analytics, and store and serve ads. To the extent that either Customer or Reseller requests TD’s help to use the Services on Customer’s behalf, Customer consents to the actions that TD performs on its behalf. Customer retains sole responsibility for such assisted use of the Services.

2.2 Reporting. Customer will have access to TD’s online reporting interface. All information from the interface is solely for the internal use of Reseller, Customer and its Clients. 

2.3 Audience Tools. Fees for use of Audience Tools will be as shown in the Platform or agreed in advance in writing. Customer may use the Audience Tools solely for the purpose of managing campaigns through the Platform and shall not attempt to extract or recreate the data underlying the Audience Tools or assemble similar data or audience segments itself (directly or indirectly through a third party). 

2.4 Beta Features. TD may offer to Customer the right to use certain experimental features from time to time (“Beta Features”). All Beta Features are provided on an “as is” and “as available” basis, without any representations, warranties, covenants or obligations of any kind, and may be terminated by TD at any time. Any use by Customer of Beta Features is solely at Customer’s own risk. 

2.5 Direct Bill to Customer by Inventory Partner. Customer is prohibited from entering into any arrangement where Customer pays an Inventory Partner directly for the cost of such Inventory Partner’s ad inventory that is purchased by or on behalf of Customer through TD’s Platform. 

2.6 Ad Tags. If Customer uses the TD ad server, Customer is responsible for inputting ad tags so that they are functional. Each ad tag may relate to one advertiser only (but can be related to multiple ads/​creative for that advertiser).

2.7 Connected TV. Purchases of connected TV inventory may be subject to additional terms and conditions, which TD will provide to Customer in writing (email sufficing). Creatives intended to be served on connected TV inventory must be provided to TD at least two full business days in advance of any campaign launch.

2.8 Additional Features and Services. TD may roll out additional features or services from time to time, which may require additional fees and terms and conditions as set forth in the Platform or by separate agreement between the parties. 

2.9 Third Party Access. Customer is responsible for all activity under its account, including maintaining the confidentiality of its account logins and passwords and ensuring that all reporting and data usage complies with these TOUs. Customer acknowledges and agrees that Reseller will have full access to Customer’s account, data or reporting (via the Platform or otherwise). Customer may request in writing or via the Platform that TD approve and grant access to its account, data, or reporting (via the Platform, APIs or otherwise) (collectively, “Account Access”) to certain third parties. TD reserves the right to reject Account Access to any third parties. TD approved third parties are collectively referred to herein as “Third Parties.” Customer shall ensure that all Third Parties (a) use Customer’s account information solely for Customer’s benefit and solely as required to provide services to Customer (or if such Third Party is a Client, then for such Client’s internal use) and for no other purpose, and (b) are aware of, and comply with, all restrictions for use of the Services, Platform, and data described in these TOUs. Customer shall be liable for any breach of these TOUs by any Third Party, as if Customer committed such breach itself. Additional terms, conditions, and fees for Account Access may apply.

3. RESTRICTIONS. Customer will use the Services only for its own use or for a Client or for a direct agent with which Customer has a direct relationship. Customer will not directly or indirectly (a) circumvent or attempt to circumvent any TD security measure or interfere with or attempt to interfere with the proper functioning or performance of the Platform or Services, (b) share its Platform login with, or otherwise grant access to the Platform or Services to, any third party without express notification to and approval by TD in compliance with Section 2.9, © reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble any TD-provided tag, the Platform, Audience Tools (other than Customer Data), or any portion thereof, except to the extent permitted by applicable law, and provided always that any information obtained by Customer as a result of any such acts is (i) used only as permitted by applicable law for the purpose of achieving inter-operability between the Platform software and other software; (ii) not disclosed to a third party without TD’s prior written consent; and (iii) is not used to create any software that is similar to the Platform software, (d) use or authorize the use of the Platform or Services for any purpose not permitted under these TOUs, (e) copy, sell, transfer, lease, lend, syndicate, or sub-syndicate the Platform or any Service, or use the Platform or Services for co-branding, timesharing, arbitrage (e.g., reselling), service bureau or other unauthorized purposes, (f) utilize rotating ad tags or otherwise violate the Ad Standards, (g) violate the provisions in Section 6, (h) distribute viruses or other malware (through the ads or any other mechanism), (i) create targeting profiles or segments on the basis of the publisher Sites that a user has visited, the content on the publisher’s page or site, or the general interest area(s) covered by the publisher (e.g., Customer may not create an “ESPN Audience” segment based on any information obtained during a prior campaign on ESPN properties), (j) use the Platform or Services for gathering competitive intelligence, (k) create an activated Ad Group (which is a feature of the Platform that specifies the targeting strategy for a campaign) that spend less than $1.00 per day, or (l) enter into these TOUs if Customer is not of legal age to form a binding contract with TD and/​or Reseller or a person or entity barred from using the Platform or Services under the laws of the United States or other countries, including the country in which Customer is a resident or from which Customer uses the Platform or Services. TD or Reseller may immediately suspend Customer’s access or terminate these TOUs upon its reasonable belief that Customer has breached any provision of this Section 3. In the event that Customer’s breach of this Section 3 is attributable to its intentional misconduct or gross negligence and results in a termination or suspension of TD’s ability to conduct business with a third party partner (e.g., an Inventory Partner), without limiting any rights or remedies available to TD or Reseller and notwithstanding any other provision in these TOUs to the contrary, Customer shall be liable to TD and Reseller for all lost profits resulting from such suspension or termination. 

4. COUNTING. TD will have sole responsibility for calculating and reporting metrics on media or data bought and sold through the Platform and such metrics shall be used for calculating payments. TD will make such metrics available to Customer through the Platform. TD may update numbers if there is delay in reporting affecting month-end invoicing.

5. OWNERSHIP AND DATA USAGE.

5.1 Customer Data. As between TD and Customer, Customer owns all right, title and interest in (a) all data Customer imports into the Platform, including but not limited to information about advertising campaigns and Customer’s account (“Customer Data”), and (b) the ads Customer provides. TD may use Customer Data solely to provide the Services available under these TOUs.

5.2 TD Data. As between TD and Customer, TD owns all right, title and interest in (a) the data residing in the Platform and Services that does not constitute Customer Data, Business and Campaign Data (defined below) or third party data underlying the Audience Tools (“TD Data”) and (b) the Services. Customer may use TD Data solely in connection with its use of the Platform and Services.

5.3 Business and Campaign Data. Each party may use the data generated by Customer’s use of the Services (“Business and Campaign Data”) as follows. Customer may use Business and Campaign Data for any internal business purpose provided that (a) it complies with its privacy policy, (b) it complies with the terms of these TOUs, and © it does not disclose data that describes or reflects the performance of the Platform (or any other Services), or any publisher or Inventory Partner, to other parties except Customer’s Third Party service providers who are under confidentiality restrictions, and subject to the terms of these TOUs. TD may use Business and Campaign Data (i) to provide the Services, (ii) internally for any other business purpose (e.g., fraud detection or financial reporting), and (iii) externally if such data is aggregated with other data such that third parties cannot attribute the data to Customer (e.g., publishing industry trends on average CPMs). Customer acknowledges that Inventory Partners and their publishers have access to Customer Data and other information in connection with the purchase of their inventory.

5.4 Feedback. Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Customer to TD relating to the Platform, the Services or any other services or products of TD (collectively, “Feedback”) are provided voluntarily. Customer agrees that all Feedback shall be owned by TD and may be used by TD without compensation, accounting or attribution to Customer. 

5.5 Reservation of Rights. Aside from the rights granted herein, TD does not grant Customer any other right, express or implied, and TD reserves all rights not expressly granted hereunder. 

6. USER PRIVACY.

6.1 Each party will take measures to ensure that users are provided User Notice on Sites where data is collected and used in association with the Services. Each party will have, and will make commercially reasonable efforts to contractually obligate their partners who may provide or use data in association with the Services (i.e. advertisers and other demand partners of Customer, and Inventory Partners of TD) to have, User Notice included in a clear and conspicuous privacy notice available prominently from its Site. “User Notice” means (a) a description of the collection and use of data from and about users for advertising purposes by third parties such as TD, and (b) access to an opt in or opt out choice with respect to such data collection that applies to TD, including with respect to cookies and similar technologies as is required by law or otherwise in accordance with industry self-regulatory principles. Each party will take reasonable steps to ensure that all User Notices accurately describe data collection and use associated with Customer’s use of the Services and, at minimum, include the information required and meet the standards for notice to users set by the Network Advertising Initiative (“NAI”) in the NAI Code of Conduct and associated guidance, including as relevant to the circumstances, the guidance on Viewed Content Advertising, Cross-Device, Non-Cookie Technologies, and any superseding, additional, or supplementary guidance (“NAI Code”) in the US; or, (ii) described in TD’s Notice and Choice Guidelines located in the TD Wiki (or successor URL) anywhere else in the world. Additionally, each party will, in all applicable respects, follow the requirements of the applicable local self-regulatory program such as the DAA Self-Governing Principles in the US (currently found at aboutads​.info), the EDAA European Principles (currently found at edaa​.eu) in Europe, or the DAAC principles (currently found at yourad​choic​es​.ca) in Canada. 

6.2 Without limiting Customer’s obligations under any applicable law, Customer shall not cause Reseller, TD or the Platform to process: (a) any information regarding an individual user’s specific health condition or any information or inference regarding health that would be considered sensitive under: (i) the NAI Code in the US, or (ii) any applicable self-regulatory program, regulation or law anywhere else in the world; (b) any information associated with a persistent identifier that is: (i) from or about individuals Customer knows or should know are children (children being individuals less than the greater of 13 years of age or the age defined by law in any applicable jurisdiction), (ii) any information from inventory that Customer knows or should know is directed to children, or (iii) any user or audience segments directed at or identifying children; © any Directly Identifying Information; or (d) any other information that would be considered protected, sensitive, special, or similar under applicable local law or local self-regulatory program, such as PHI as defined under the Health Insurance Portability and Accountability Act of 1996. Customer shall not combine any TD Data or Business and Campaign Data with any Directly Identifying Information or use any TD Data or Business and Campaign Data to, or attempt to, directly identify an individual. Customer shall not use the Platform or any TD Data or Business and Campaign Data for any non-marketing purposes, including without limitation decisions relating to eligibility for, or pricing of, employment, credit, health care, insurance, housing, or education. TD may restrict the data that it allows or makes available on the Platform in its reasonable discretion to protect user privacy.

6.3 For any data that Customer or its clients collect using the Platform or upload into the Platform, or direct to be collected or uploaded, such as by using Platform features like pixels, tags, cookies, or APIs, Customer will ensure that all necessary rights and permissions are established for the use of such data in the Platform and in association with the Services, and that such use of the data is strictly in compliance with all applicable laws and applicable self-regulatory requirements. If Customer implements the Campaign Analytics Code, User Notice must be included on the Sites where the Code is used and must identify TD specifically. 

6.4 The parties agree that certain jurisdictions may impose data privacy requirements that are additional to those contained in these TOUs. Customer represents that its country of formation is the United States. Customer shall only use the Platform to conduct its advertising campaigns inside of the United States and Canada and Customer is prohibited from causing TD to process Customer Data from outside of the United States or Canada. If Customer wishes to conduct campaigns outside of the United States or Canada, or to cause TD to process Customer Data from outside of the United States or Canada, Customer (a) shall enter into a Data Processing Letter Agreement with TD that Company shall make available to Customer upon request and (b) hereby agrees to abide and be bound by the terms and conditions of the TD Data Processing Agreement (the “TD DPA”) as published at https://​www​.thetrad​edesk​.com/​g​e​n​e​r​a​l/dpa (or a successor URL) and updated by TD from time to time. As applicable to the parties based on the data being processed hereunder, the TD DPA shall be incorporated herein by reference.

6.5 If Customer becomes aware that it or Reseller on its behalf provided to TD or caused TD to process any information in breach of this Section 6, Customer shall, at Customer’s sole cost, immediately notify TD and Reseller in writing and take all necessary steps to assist TD in responding to the breach by removing the data and doing anything else necessary to come into compliance.

7. COMPLIANCE.

7.1 Each party will comply with all applicable laws, rules, regulations and government guidance (TD in its provision of the Platform and Services in the form provided, and Customer as to the ads it provides and its use of the Platform and the Services), which shall include, for purposes of clarification and not of limitation, Federal Trade Commission guidance on sponsorships and native advertising and, if applicable, Federal Communication Commission rules, regulations and guidelines. Customer will comply with TD’s Reseller Ad Content Guidelines located in located in the TD Wiki (or successor URL), TD’s security requirements and any applicable Inventory Partner ad standards and technical requirements (all of the foregoing, “Ad Standards”). To the extent Ad Standards conflict with terms in these TOUs, the Ad Standards shall govern. Customer will not use the Platform in connection with any ads (or the targeting thereof) or other digital content that are obscene or pornographic; depict illegal activity; violate any law, regulation or third party right (including intellectual property and privacy rights); or that are deceptive or defamatory. TD or Reseller may immediately reject ads, suspend any campaign, or suspend Customer’s use of the Platform and Services if TD or Reseller reasonably determines that Customer is in violation of any of the foregoing. All information provided by Customer to Reseller or TD regarding itself and its Clients (including its and their identity and operations), ads and ad campaigns shall be truthful and correct.

7.2 The Platform (or portions thereof) may be subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside the U.S. Customer shall abide by all applicable export control laws, rules and regulations applicable to the Platform. Customer agrees that it will not export, re-export, or transfer the Platform, in whole or in part, to any country, person, or entity subject to U.S. export restrictions.

8. TERMINATION/SUSPENSION. In addition to the any other termination or suspension rights otherwise set forth in these TOUs or Customer Agreement, TD may terminate Customer’s use of TD’s Platform or Services immediately (a) upon notice for breach of these TOUs; (b) upon notice for a breach by Reseller of its payment obligations to TD with respect to any amounts due under Customer’s account; or © upon termination or expiration of Reseller’s agreement with TD. TD is under no obligation to provide Customer access to the Platform or any Services following the termination or expiration of Reseller’s agreement with TD. Additionally, TD or Reseller may suspend access to the Platform and use of the Services if TD or Reseller reasonably believes that Customer’s continuing use of the Platform or Services may cause risk of litigation or otherwise be harmful to TD or Reseller. In no case will any termination or suspension pursuant to these TOUs or Customer Agreement give rise to any liability of TD or Reseller to Customer for any damages.

9. DISCLAIMER. THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NEITHER TD NOR RESELLER MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS TO CUSTOMER FROM THE PLATFORM, OR THAT THE PLATFORM OR ANY INFORMATION PROVIDED BY INVENTORY PARTNERS AND/OR DATA PROVIDERS WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.

10. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TD OR RESELLER HAVE ANY LIABILITY TO CUSTOMER UNDER ANY THEORY OF LIABILITY FOR ANY DAMAGES RELATED TO OR ARISING FROM CUSTOMER’S USE OF TD’S PLATFORM OR SERVICES PURSUANT TO THESE TOUS OR THE CUSTOMER AGREEMENT, INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, LOSS OF BUSINESS OR GOODWILL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. 

11. INDEMNIFICATION.

11.1 Customer shall indemnify, defend and hold harmless TD, Reseller and their directors, officers, employees and agents, its and their respective successors, heirs and assigns (collectively, the “Indemnified Parties”) against any claim, liability, damage, loss or expense (including reasonable attorneys’ fees and costs) (“Liabilities”) incurred by the Indemnified Parties in connection with any third party claim arising out of or relating to (a) Customer or any Third Party’s use of the Platform or Service in contravention of any terms of these TOUs; or (b) any advertisement or other material with which Customer or any Third Party uses on or in connection with the Platform (including the ads, landing pages and other materials of Customer and its Clients). The Indemnified Party will provide Customer with prompt notice of any claim (provided that the failure to promptly notify shall only relieve Customer of its obligation to the extent it can demonstrate material prejudice from such failure) and at Customer’s expense, provide assistance reasonably necessary to defend such claim. Without the Indemnified Party’s prior written consent, Customer shall not enter into any settlement or compromise that (i) would not fully absolve the Indemnified Party of liability; (ii) would contain any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of the Indemnified Party; or (iii) would restrict or limit the Indemnified Party’s business or operations. With respect to any data privacy, or other governmental or regulatory investigation or claim, TD shall have the option to have sole control of the defense and any settlement negotiations at the indemnitor’s expense.

12. CONFIDENTIALITY. “Confidential Information” means any information relating to or disclosed in the course of these TOUs, which is or should be reasonably understood to be confidential. Any data regarding the performance of the TD systems and Services is TD Confidential Information. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this these TOUs. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party. Confidential Information does not include information that (a) is or becomes part of the public domain through no fault of the receiving party, (b) was already in possession of the receiving party, or © was independently developed by the receiving party without violation of this Section 12. The receiving party may disclose Confidential Information if required to do so by law, if the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. Customer shall keep confidential any third party information provided through the Platform (“Third Party Data”), and use such Third Party Data solely for purposes of planning and administering campaigns, including post-campaign analysis. For clarity, Customer may not (i) extract Third Party Data; (ii) disclose, display, copy, transmit, reproduce, or duplicate the Third Party Data for any purposes except as expressly stated in this Section 12; (iii) make any use whatsoever, whether internally or externally and whether for commercial purposes or otherwise, of any Third Party Data or information derived therefrom except through the Platform as permitted in this Section 12; or (iv) rent, sell, sublicense, transfer, grant any rights in, modify, reverse engineer or create derivative works of (including analytics based on, except as described in this Section 12) the Third Party Data.

13. MISCELLANEOUS.

13.1 Customer will not make any public statement relating to these TOUs or Customer’s use of TD’s Services without TD’s prior written approval. TD may include Customer’s name and logo in its marketing, promotional materials and customer lists. 

13.2 Unless otherwise expressly set forth in these TOUs or in a supplemental agreement, all supplemental terms and conditions or ancillary agreements entered into between the parties for additional features or services will be subject to the terms of these TOUs. To the extent that the terms of any supplemental terms and conditions, ancillary agreement or the Customer Agreement conflicts with the terms of these TOUs: (i) these TOUs shall govern with respect to the obligations hereunder from Reseller or Customer to TD and TD’s rights as a third party beneficiary herein; and (ii) the Customer Agreement shall govern with respect to the obligations between Customer and Reseller.

13.3 TD reserves the right to continually evolve the Platform and its services without notice.

13.4 This is the entire agreement of the parties relating to this subject and it supersedes all other commitments, negotiations and understandings. MODIFICATIONS TO THESE TERMS AND CONDITIONS MAY BE MADE BY TD AT ANY TIME. TD WILL PROVIDE NOTICE TO RESELLER OR TO CUSTOMER BY EMAIL OR A NOTIFICATION POSTED TO CUSTOMER’S PLATFORM ACCOUNT. CUSTOMER AGREES TO THE NEW TERMS AND CONDITIONS BY CONTINUING THE USE OF THE PLATFORM OR SERVICES. 

13.5 If any provision of these TOUs is unenforceable, that provision shall be re-interpreted to be as close to the parties’ intent as legally possible and the validity of the remaining provisions will not be affected. Sections 3, 5 – 7, and 9 – 13 will survive expiration or termination.

13.6 TD’s or Reseller’s failure or delay to exercise any right will not operate as a waiver, nor will any single or partial exercise of any such right preclude any other exercise or the exercise of any other right, power or remedy. 

13.7 If TD is required to provide any notice under these TOUs or the agreements in place with any Reseller, such notice shall be provided by TD to Reseller or Customer as determined by TD in its sole discretion based on the circumstances and designated contact information for notices available to TD in the Platform.

13.8 These TOUs are between Customer and Reseller; provided, however, that Customer acknowledges TD is a third-party beneficiary to these TOUs and, as incorporated by reference, the Customer Agreement. As a third-party beneficiary, TD shall be entitled to the rights and benefits hereunder and may enforce the provisions hereof against Customer. 

13.9 TD is not liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.